IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
MADAM TAWIAH AGYEMAN - (Plaintiff)
SAMUEL DARKO & ANOR - (Defendant)
DATE: 5TH APRIL, 2015
SUIT NO: OCC/55/12
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
MRS. ANNA FORDJOUR FOR THE PLAINTIFF
MR. YAW ACHEAMPONG BOAFO FOR THE DEFENDANT
The Plaintiff in the instant action seeks to recover the sum of One hundred and Three Thousand, Six hundred and Eighty Ghana Cedis (GH¢103,680.00) being the value of services rendered by the Plaintiff to the Defendant during the construction of sixty six (66) storerooms at Adum, Kumasi. She is also claiming interest on the said sum from December, 2009 till date of final payment.
It appears from the Pleadings that the Parties dealt with each other based on trust such that their agreements were not reduced into writing. What then has turned this hitherto trusted and healthy relationship into a “battle field”? First, I will state the Plaintiff’s version of events leading to this action. Her case is that she has been the Plaintiff’s tenant since the year 1999 based on two oral tenancy agreements. The first agreement was for a period of ten (10) years commencing 1999 to 2009.Upon expiration, it was renewed for a further period of 10 years, initially at an agreed rent of GH¢ 5,000.00, which Defendant unilaterally raised to GH¢15,000.00. Out of this sum, Plaintiff said she has so far paid GH¢12,500.00. Notwithstanding this payment, the Defendant caused her shop to be locked up on two occasions, but she cut off the locks on the second occasion. In the course of her tenancy, it came to her notice that the Defendant had control over a vacant parcel of land in front of the shops in issue. Thus, she discussed with the Defendant the possibility of Defendant developing this land into stores. Due to lack of funds, Defendant authorized her to get interested market women to pre-finance the project. This she did religiously by collecting money from numerous people and paid the same to the Defendant in his house, on his farm or into defendant’s designated bank accounts. Problems ensued. Construction was delayed for two years and upon completion, Defendant allocated stores to people other than those who had pre-financed the project and this led to his detention at the Police station but the Plaintiff bailed him.
Defendant put the Plaintiff in charge of the construction and she gave particulars of the services rendered in paragraph 21 of her amended statement of claim filed on 10/06/2013 as follows:
i. Supervision of the construction of the 66 storerooms.
ii. Purchase of building materials for the construction.
iii. Utilization of Plaintiff’s water to mould majority of the cement blocks used for the construction of the storerooms.
iv. Plaintiff transported herself from Breman Okess to Defendant’s residence at Kentinkronu, Kumasi, his work place or bank as directed by Defendant to pay money from prospective tenants to defendant ( at least twice in a day).
v. Telephone calls made by Plaintiff to Defendant about prospective tenants and collection of monies from them.
vi. Plaintiff transported herself to the Police Station upon Defendant’s request to arrange his bail on two occasions.
She rendered all these services for an agreed consideration of GH¢ 40,000.00 plus one of the newly constructed storerooms and at the detriment of her own business. Yet, the Defendant seeks to evict her after she had paid GH¢12,500.00 as rent, but she has every right to occupy the store until the year 2019. In so far as the Defendant has failed to pay the agreed consideration, the Plaintiff is claiming an amount of GH¢40.00 per day for 27 days in a month for 8 years which sums up to GH¢103, 680.00.
This chronicle of dealings between the Parties was to a large extent denied by the Defendant. What then is his version of the events leading to this action? He averred in his statement of defence that the initial tenancy commenced from 1997 for a period of 10 years but upon its expiration in 2007, there was a two year delay before a second tenancy of five years was agreed on at the rent of GH¢ 15,000.00. It was the Plaintiff’s failure to pay the agreed rent that led the parties to the rent office as a result of which the store was locked up on two occasions. The Plaintiff unlocked the store and continued to occupy the same. At all material time, there was an engineer in charge of the construction of the storerooms and the Plaintiff was never put in charge; the Plaintiff never rendered services as regards the construction and thus the alleged particulars of services are false. Again, the Defendant averred he never promised to pay GH¢ 40,000.00 to her in addition to giving her one of the newly constructed storerooms. In his view, the Plaintiff’s action has been brought in bad faith to perpetuate her unlawful occupation of the Defendant’s storeroom.
For the determination of the Plaintiff’s case, nine issues were agreed on, namely:
1. Whether or not the initial Tenancy Agreement expired in 2007 or 2009?
2. Whether or not the Tenancy Agreement was renewed for a period of 10 years or 5 years?
3. Whether or not during the negotiations for renewal of the Tenancy Agreement, the parties agreed the Defendant would renew the tenancy for ten years at a total rent of GH¢ 5000.00?
4. Whether or not the Defendant dispensed with the services of the Contractor charged with construction of storerooms at Paul Sagoe Lane, Kumasi?
5. Whether or not Defendant later put Plaintiff in charge of the purchase of building materials and supervision of the construction of the storerooms at Paul Sagoe Lane, Adum, Kumasi?
6. Whether or not Plaintiff was also responsible for the collection of money from prospective tenants and applied same on Defendant’s instructions to the building of the stores?
7. Whether or not Plaintiff rendered selfless and other services to the Defendant?
8. Whether or not Defendant agreed that in consideration of Plaintiff’s services, she was to be given one (1) newly constructed storeroom and GH¢ 40,000.00.
9. Whether or not the Plaintiff is entitled to claim GH¢ 103,680.00 from the Defendant?
In my view, issues (4) to (8) can be summarized into two issues as follows: Whether or not the Defendant put Plaintiff in charge of the construction whereupon she rendered services towards the building of the storerooms in issue? And if so, whether Defendant agreed that in consideration of Plaintiff’s services, she was to be given one (1) newly constructed storeroom and GH¢ 40,000.00?
The burden of persuasion as well as the evidential burden on this issue rests on the Plaintiff having made positive assertions which have been denied by the Defendant. On this “combo” issue, Plaintiff testified that in 1999 and during her initial ten year tenancy period, she hatched the idea of development of stores on the Defendant’s vacant land. However, when she communicated this plan to the Defendant, he indicated to her that he had no money. Thus, an agreement was reached for the Plaintiff to approach prospective tenants for the purpose of raising funds to pre-finance the project. According to the Plaintiff, she invited a number of market women who paid various sums of money to her on authorization of the Defendant. In turn, she paid these monies into the Defendant’s accounts at Ecobank, Barclays, Prudential and Standchart Banks. Whenever a payment was made, the Plaintiff said she phoned the Defendant to inform him and that she used her money in running all these errands for the Defendant.
Continuing, the Plaintiff said in evidence that the construction started in the year 2002, after a two year delay and was completed in 2010. According to her, the monies which she collected from the market women was used to construct the ground and first floors of the stores. She led oral evidence in support of her assertion that the Defendant failed to allocate stores to the women who had pre-financed the project, leading to his arrest by the Police Buffalo Unit. She did not hesitate to add that on two occasions when Defendant was arrested, he invited her to the police station to secure bail for him before the Defendant eventually refunded those monies to the financiers. Due to the financial constraints, the Plaintiff said she utilized water from her house in molding blocks. In 2002 when the Defendant travelled to the USA, the Plaintiff said she was in charge of purchasing building materials and she did so with her husband who recorded the purchases in a note book (exhibits B, B1 to B2). She emphasized that the monies she collected from prospective tenants were recorded in these books. In her view, exhibit B series is proof of the fact that she applied the monies collected from prospective tenants towards the construction of the stores. For her remuneration, the Plaintiff told the court that the Defendant agreed to pay her an amount of GH¢ 40,000.00 and to give her one of the newly constructed storerooms but he failed to do so. In addition, the Defendant told her not to pay rent during the period of construction. Yet, he turned round and took GH¢12,500.00 out of the GH¢15,000 rent he demanded from her for a period of ten years. She went on to say that the payment of GH¢12,500.00 entitles her to occupy the store in issue for a period of 10 years ending 2019.
One of the prospective tenants who pre-financed the project testified as PW1. She gave her name as Catherine Asamoah Boateng a.k.a. Kate. PW1 said she paid monies to the Plaintiff and she saw the Defendant for the first time when Plaintiff took her to his house. Although she had paid money for a ground floor store to be allocated to her, PW1 said Defendant assigned a store on the first floor to her which she later rejected and her money refunded to her through the Plaintiff. PW4, Mary Agyemang who paid money to Plaintiff in the business name of her child, De Frank Guest House, testified that she paid a total of GH¢12,000.00 quoted by the Plaintiff for a ground floor store but the Defendant had let out all the stores on the ground floor and she eventually got a refund. In cross-examination, PW4 admitted that the Defendant was the owner of the stores but it was the Plaintiff who supervised the construction.
An electrical welder, Kwabena Owusu Bempong, whom the Plaintiff engaged to execute some work on the project also gave evidence as PW2. PW2 said he made rolling gates for some of the stores and repaired some defective rolling gates which had earlier been made. Besides, he made balustrades on the verandas in front of the stores as well as a metal gate for the main entrance to the building. In cross-examination, PW2 could not tell the total amount paid to him for these jobs but he could remember charging GH¢ 500.00 per gate. He also said the work was done about 5 years ago.
To corroborate her evidence on the block making, the Plaintiff called a mason who manufactured the blocks as PW3. He gave his name as Yaw Antwi James. PW3 confirmed the Plaintiff’s story that blocks for the Sagoe Lane project were made at two places belonging to the Plaintiff, i.e. Okess, UGC Breman last stop and Asuoyeboah. He emphasized that pipe borne water from the Plaintiff’s premises was used to mold the blocks. In addition to molding blocks, PW3 said he did some plastering works at where the metal works had been done and also fixed the balustrades. For all these works, PW3 said he was paid by the Plaintiff. PW3 added that he accompanied the Plaintiff to visit the Defendant when he was unwell during the construction period.
To crown it all, the Plaintiff's husband led evidence to confirm the monies collected by Plaintiff upon the Defendant’s instructions from prospective tenants. Per his evidence, when Defendant commenced the construction and was about to travel abroad, he put the Plaintiff in charge of the construction. She continued to mobilize money for the purchase of building materials and supervised the molding of blocks at their Breman UGC and Asuoyeboa houses, using pipe borne water from the said premises. He gave a detailed account of how Plaintiff was harassed by prospective tenants when the project had slowed down, the Defendant’s arrests by the police in respect of which Plaintiff bailed him and the record of purchases he made. These activities, according to PW5, slowed down the Plaintiff’s business. He admitted in cross-examination that he personally made entries of purchases from July, 2002 to November, 2002 when the Defendant had travelled to the USA. Besides the purchases evidenced by the exhibit B series, PW5 insisted that his wife continued to supervise the construction after the defendant’s return from USA. He also admitted that the topmost floor has not been completed to date.
Having established these facts, the burden of persuasion shifted onto the Defendant who is required to introduce evidence to contradict the Plaintiff’s testimony as regards the issue under consideration.
Mr. Samuel Darko admitted that the Plaintiff hatched the idea of putting up the stores complex at a time when squatters had virtually taken over the place and were a nuisance. Even though the land in issue belongs to his father, Rev Darko, the Defendant said he was responsible for the construction and never instructed the Plaintiff to supervise the construction. Rather, the Defendant said he engaged the services of a contractor by name Mr. Marfo. Times that he travelled, Defendant said he left monies with the Plaintiff so the contractor could go for same as needed. However, he admitted that the Plaintiff brought in some people who pre-financed the project. Further in his evidence, the Defendant stressed that there was no agreement to pay the Plaintiff GH¢ 40,000.00 for her services and he is also not liable to pay the Plaintiff GH¢ 40.00 a day for 27 days in a month for eight years. Neither is he liable to pay GH¢12,960 every year or a total of GH¢103,680.00 to the Plaintiff. He also led evidence to the effect that when the construction started, he did not take rent from the Plaintiff and even relocated her into a temporary store at a time in point when some stores, including what she occupied had to be extended so her business will not slow down. Although the Defendant denied engaging the services of the Plaintiff, he conceded under cross-examination that the Plaintiff performed some services for him, especially when he "was away". This is what transpired in cross-examination:
Q. Plaintiff did collect rent and she kept a record of all the rent?
A. As I said, I cannot recall that. I know she collected deposits for the construction of the shops...
Q. You denied that you offered the Plaintiff a store and GH¢ 40,000.00?
Q. So what was the agreed remuneration for the work that Plaintiff did for you?
A. I did not engage her in any services. Anytime I was away, she collected monies and the contractor as and when they needed money went to her for it.
Q. How many times did you travel out of the jurisdiction during the construction?
A. I cannot recall but I know in 2006, I went several times because I had a medical condition and then in subsequent years.
Q. Can we say apart from 2006, you were going once a year?
A. At least once a year.
Q. You asked the Plaintiff to find a tenant for the store room she had set aside for Mr. Marfo and she did?
A. That is not correct. She was already looking for tenants for all the shops.
Q. Plaintiff had introduced all those prospective tenants who wanted store rooms on the ground floor to you?
A. That is correct.
Q. And you had taken their monies?
A. That is true.
Q. Work on the project continued in your absence because Plaintiff diligently collected outstanding balances from these prospective tenants?
A. That is true because there was money left behind that she was using for the project.
Still on the construction of the stores complex, the Defendant called one Amos Marfo who described himself as the contractor in charge of the project as a witness ( DW1). DW1 denied outright that the Plaintiff played no role in the construction of the stores. According to him, he engaged one Peter (now deceased) to do purchases and thereafter another person called Dada continued. DW1 further said that Plaintiff never gave him money for the construction and did not on her own volition supply him with building materials. Strangely, DW1 contradicted the evidence of Defendant that times when he travelled, Plaintiff gave out monies for the purchase of building materials, among others.
SUBMISSIONS BY COUNSEL FOR PLAINTIFF
In respect of the issues under consideration, counsel submitted that the Plaintiff has succeeded in proving her case as she is required to do under sections 10 and 11 the Evidence Act, N.R.C.D. 323. In particular, counsel referred to portions of the Plaintiff's evidence on the efforts she put in whilst mobilizing monies from prospective tenants to pre-finance the project which she in turn paid to the Defendant and the fact that the Defendant could not deny these pieces of evidence either in cross-examination or in his evidence -in-chief. Further, counsel argued that since the Defendant did not deny the testimonies of the electrical welder who did most of the rolling gates and the Block mason who molded the blocks for the project, he is deemed to have admitted that evidence. Also, counsel contended that the Defendant did not challenge the evidence of PW5 (Plaintiff's husband) that the Plaintiff supervised the molding of blocks for the construction in his house. She also brought out the inconsistencies between the evidence of the Defendant and DW1. In the opinion of Counsel for the Plaintiff, the Defendant and his witnesses are not credible and she invited the court to so find and accept the Plaintiff's evidence as the truth.
Counsel argued that an oral agreement between the parties who are not relatives can be inferred from the circumstances of this case which suggest that they intended to create legal relations. In support of this, she relied on Kobaku Associate v Owusu (2006) 2 MLRG 228 at page 247 per Heward Mills J thus:
"Where a contract is not required to be in writing then the existence and contents of such a contract must be proved. The court must look at all material facts upon which the contract is based in order to ascertain what was really decided by the parties. An oral contract not reduced into writing is binding nevertheless so long as clear evidence as to essential terms and the actual intentions of the parties."
The case of Edwards v Skyways Ltd ( 1964) 1 All ER 494 was also cited by counsel to buttress her point. In that case, the court held that the subject matter of the agreement related to business matters and, therefore, the onus of establishing that there was no intention to create legal obligations was on the Defendant.
Desirous of convincing the court as regards the intention to create legal relations, counsel relied on Hammond v Ainooson ( 1974) 1 GLR 176. In that case, the Plaintiff relied on an oral contract to claim monies for the supervision and purchase of materials for the repairs on a boat at a boatyard. Her action was based on a breach of an essential term that she was to sell all the fish that would be caught by the boat but the Defendant employed another woman to sell the fish from the boat due to a misunderstanding. Abban J held at page 180 of the report as follows:
" I find that the Plaintiff agreed to do the so- called supervision work and the defendant agreed to pay her an allowance of GH¢ 3.00 a day, until the completion of the repairs by the Boatyard corporation. The Plaintiff is not a relative of the Defendant and until they were introduced to each other by Araba Nana, they had not previously met anywhere...
I think it was in pursuance of this particular term of the agreement that when the repairs began, the Plaintiff discontinued her work at Narkwa Fisheries where she was earning an appreciable income for her living."
Concluding, Counsel submitted that the evidence on record depicts a strong presumption of intention to create legal relations and from which the existence of a contract is to be inferred
SUBMISSIONS BY COUNSEL FOR DEFENDANT
Counsel for the Defendant shared the court's view that issues 4 to 8 be merged into two broad issues as follows:
1. Whether there was an agreement between the Plaintiff and the Defendant for her to supervise the construction of the Defendant's new shops, in consideration of which Plaintiff will be entitled to one new store room and GH¢ 40,000.00, and
2. Whether the Plaintiff is entitled to claim GH¢103,680.00 from the Defendant.
Relying on the decision of the Supreme Court in the case of Ackah V Pergah Transport Ltd (2010) SCGLR 731, counsel submitted that a party who makes a positive averment has the burden to produce evidence which include the testimonies of the party, material witnesses, admissible hearsay, documentary among others, without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court.
Counsel dwelt on the testimony of PW5, the husband of the Plaintiff and argued that apart from tendering exhibits B and B1 as recorded activities of the of the plaintiff's supervisory works, PW5 did not either in his examination in chief or in cross-examination say that the Defendant agreed to give the Plaintiff one new shop and GH¢ 40,000.00 for her supervisory role.
Counsel argued further that from the evidence of the Plaintiff and her numerous witnesses, it can clearly be seen that there was at no material time pursuant to the construction of the shops any valid contract capable of being enforced between the Plaintiff and the Defendant. He brought out the basic elements of a valid contract as offer and acceptance, consideration, capacity to contract and intention to create legal relations. And, that the existence or otherwise of an intention to create legal relations is always a question of inference to be drawn by the court based on the nature of the agreement, the surrounding circumstances and an objective construction of what the parties said, did or wrote. As regards the instant case, counsel identified portions of the cross-examination of the Plaintiff where the following admissions which negate the intention to create legal relations were made:
Q. You are not a professional caterer
A. am not a professional caterer
Q. You realize that the reason why you cook for the Defendant is that you, the Defendant and his wife were very good friends
A. That is true.
Q. In your evidence part of your claim that led to the sum of GH¢ 103, 680.00 included cooking for the Defendant
Counsel moved on to say that the plaintiff gave contradictory evidence with regard to what was agreed on. Specifically, he referred to the Plaintiff's evidence-in-chief where she stated:
"I want the court to grant my wages (per diem) of GH¢103, 680.00. I was supposed to be paid GHS 40.00 per day for 30 days but I have reduced it to 27 days multiplied by eight years.
The above piece of evidence, according to counsel, is inconsistent with the Plaintiff's own assertion that it was agreed she will be paid GH¢ 40,000 and be given a shop for her to supervise the building of the Defendant's new shops. Further reference was made to the Plaintiff's evidence-in-chief which counsel says contradicts her own assertion that she is entitled to GH¢ 40,000.00 and a shop in the new building. Going back to exhibits B and B1, it was the argument of counsel that even though it took eight years to construct the stores, the recordings in those exhibits cover only five months transactions from July 2002 to December 2002.
The case of Amoudy v Antwi ( 2006) 3 M.L.R.G. 183 at 202 per Atuguba JSC was cited to crown the submissions on the absence of intention to create legal relations thus:
" there is one golden rule which is of very general application, namely, that the law does not impute intention to enter into a legal relations where the circumstances and conduct of the parties negate any intention of the kind."
I started my judgment my indicating that the parties dealt with each other based on trust. It is obvious from the Plaintiff's evidence that she was a close family friend of the Defendant. Indeed, the evidence shows that she got to know the Defendant through his brother who lives abroad and with whom the Defendant reside any time he travelled to the USA. It is also on record that the Plaintiff was in the habit of grocery shopping and preparing meals for the Defendant out of her own free will. With this strong tie, the Plaintiff who talked the Defendant into the construction in issue supported him by searching for prospective tenants to pre-finance the project. The evidence shows that she supervised the molding of cement blocks for the project, using pipe borne water from her houses, purchasing raw materials for the workmen, and in general "keeping the purse" and giving out money to the Foreman as needed. Looking at the entire circumstances of this case, it is my considered opinion that the Plaintiff performed these tasks just as a family member would do, and it was devoid of any intention to create legal relations from which the existence of a contract can be inferred. That notwithstanding, she expended her time and resources on the project. Contrary to the arguments by Defendant's counsel, based on exhibits B and B1, that the Plaintiff's supervisory role covered only a period of five months, from July to December 2002, the Defendant admitted in cross-examination that the Plaintiff played a role in the year 2006 when he travelled abroad several times to seek medical attention, and even in subsequent years when he travelled. It has therefore been established that the Plaintiff played some supervisory role from the commencement of the construction in 2002 and beyond. Hence, the evidence that Peter (deceased) and Dada ( DW2) solely played that role cannot be accepted. The inconsistencies in the Plaintiff's account which Defendant's counsel seeks to capitalize on are inconsequential and can easily be disregarded. The plaintiff's evidence as regards the role she played is more convincing.
As a well meaning business woman, it is not out of place to expect some form of reward for her services. Conversely, the Defendant also knew that the Plaintiff was to be rewarded for her role in the entire project. My understanding of the Plaintiff's case is that if the Defendant is refusing to acknowledge her role and give her the expected reward, then she must be paid as if there was a contractual relationship between them.
In the first place, the Plaintiff did not offer any professional or technical assistance or direction. Obviously, she is neither a contractor, foreman, architect, quantity surveyor, civil engineer, structural engineer or the like. For such a massive edifice, I do not think an ordinary person with no technical and professional background or knowledge can solely supervise the construction. Definitely, some other technical person was involved in the supervision. Thus, on totality of the evidence, the Plaintiff's role was limited to, if I may borrow the term, "financial engineering", advancing money to the foreman as needed, purchasing raw materials, engaging craftsmen to mold blocks, do metal works and searching for tenants. It is not probable that the Plaintiff performed these activities around the clock continuously for the entire period of the construction. In her own evidence, there was even a two year delay at a point and those who had pre-financed the project mounted pressure on her. Again, her own exhibit B series shows that the purchases and related activities were not done on daily basis. She has no technical eye and so even if she was at the construction site on daily basis, her presence, strictly speaking, was not required. At best, her presence might have encouraged the workers to show up at work. A prudent business person would have ensured that these extra activities would not adversely interfere with his or her work. This is what the Plaintiff ought to have done! On the balance of probabilities, the Plaintiff has not sufficiently established the existence of a valid and enforceable contract whereby the Defendant is to give her one store and pay her GH¢40,000.00. Indeed, per the endorsement on her writ of summons, she is not claiming a storeroom and GH¢ 40,000.00. She is claiming the sum of GH¢103, 680.00 being the value of services rendered to the Defendant during the construction of 66 store rooms at Adum, Kumasi.
Counsel for the Plaintiff has urged the court to consider making an award on quantum meruit basis if the court rules out the existence of a valid and enforceable contract. Here again, counsel relied on the calculations based on GH¢ 40 per day for 27 days for eight years to arrive at the sum endorsed on the writ of summons. I have found that there is no contract between the parties and that the basis for the Plaintiff's calculations is not convincing, although she is entitled to some reward for the work done.
In Skanska Jensen International v Klimatechnik Engineering Ltd (2003-2004) SCGLR 698 ( holding 4), the court held thus:
"There are two grounds for assessment of the value of the quantum meruit for work done:
(a) reasonable remuneration fixed by the court; or
(b) quantum meruit assessed at the contractual rate. Where one party starts to perform the contract but is prevented from completing it by the other party's breach, he can claim quantum meruit at the contract rate. In this sort of situation, the amount is really an apportionment of the total contract price. It is the ratio which the work done bears to the total volume of work required to be performed under the contract. Where there is no concluded contract, then the court must assess reasonable remuneration having regard to all the circumstances..."
Quantum Meruit" simply means "as much as he has earned". On the circumstances of this case, it is my considered opinion that the Plaintiff did not , and could not have earned GH¢40 per day for 27 days in a month for eight (8) years. In the year 2002, four hundred thousand Cedis (now GH¢40) was very substantial in terms of average wage levels. Even as of 2014, the daily minimum wage was below GH¢7.00! That notwithstanding, I notice that the entire project would not have materialized without the "financial engineering" done by the Plaintiff. I must also point out that the monies collected by the Plaintiff were substantially applied towards the project even though an undisclosed portion went into other expenditures of the Defendant. Having weighed the evidence adduced by the Plaintiff and her witnesses against that of the Defendant and his witnesses on the balance of probabilities, I accept the Plaintiff's version as regards the role she played in the construction. However, I reject her calculations for remuneration, and instead, award an amount of GH¢30,000.00, which in my view is adequate compensation for the work she did.
I now turn to issues 1-3 which will be determined together. These issues relate to the initial tenancy agreement between the parties, the subsequent renewal , its duration and the rent payable.
The Plaintiff's position is that the initial tenancy was for a period of 10 years commencing 1999 to 2009, which was renewed for a further 10 years. In relation to the rent payable, The Plaintiff's contention is that the Defendant arbitrarily increased it from GH¢ 5,000 to GH¢ 15,000.00 out of which she paid GH¢ 12,500.00. She admitted that at a point in time, the Defendant summoned her before the rent control office over unpaid rent. She also said in evidence that the Defendant locked up her shop on two occasions and even tendered the chain-link and padlock in evidence.
The Defendant on the other hand contends that the initial agreement commenced from 1997 for a period of ten years 9 i.e. (1997 - 2007). But, he renegotiated with the Defendant one year after the expiration and the subsequent tenancy was for a period of five years at an agreed amount of GH¢15,000.00. In cross-examination, he explained that the store which the Plaintiff occupies used to be his wife's shop and she did not intend to rent it out beyond five years.
SUBMISSIONS BY PLAINTIFF'S COUNSEL
For the Plaintiff, Counsel submitted that the Defendant has always given his tenants ten year tenancies as demonstrated by his answers in cross-examination. She invited the court to make inferences from the evidence on record and find that the initial tenancy was in the year 2009, and it was renewed for a further ten years after its expiration.
SUBMISSIONS BY COUNSEL FOR DEFENDANT
Counsel referred to the Plaintiff's answers under cross-examination on 27-05-2014 where she admitted that as at the time the matter went to the rent control, she owed the Defendant GH¢ 15,000.00 as rent, and submitted that this admission is inconsistent with her earlier evidence that the agreed rent was GH¢ 5000.00.
I will at this point assess the evidence adduced by both parties alongside the submissions made by their counsel and determine whose version of the rival stories is worthy of credit.
It can be gathered from the Defendant's account that negotiations for renewal of the tenancy did not start until a year after the initial ten years agreement. By simple arithmetic, this would have been on or about the year 2008. The question is, why would a prudent business man like the Defendant herein, sit by for a full year before taking steps in that direction? This does not make business and economic sense! Conversely, if the ten year initial tenancy was from 1997 to 2007, and it was renewed for a further period of ten years, then it would have expired sometime in the year 2017. That being the case, why did the Plaintiff send emissaries to plead with the Defendant so she could remain in possession prior to this suit? She commenced her action in the year 2012, specifically, 26/06/2012. The following discourse demonstrates the steps taken by the Plaintiff before commencing her action:
Q. You agree with me that when you went to the rent control, you asked for time to pay the balance?
A. That is true
Q. You know as a matter of fact that the Defendant's wife made a demand that you give vacant possession of the store?
A. That is true
Q. At a point in time, the Defendant and his wife wanted to refund any monies they had taken from you and take back the store?
Q. You sent emissaries to the Defendant to plead on your behalf to be allowed to stay in the store?
A. It is true. Because of the suffering and disgrace to me, it will be humiliating for my wares to be thrown out of the store. That is why I sent emissaries to go and plead.
Q. So you realize that during the period from the time of the renewal, to the rent control, up to the sending of the emissaries, you had not made any demand on the Defendant?
A. It was because of the hardship the Defendant was going through after taking monies from people and his arrest that I obliged him and paid 50 million to him ( GH¢ 5000.00).
It is clear from the foregoing that prior to the institution of this suit, the Plaintiff was not only in arrears of rent but demands had also been made to evict her from the store. From her own testimony, she paid GH¢12,500.00 out of the GH¢15,000.00. This was also confirmed by the Defendant in his testimony. I find that the Defendant's attempt to evict the Plaintiff from the store in issue was because of unpaid rent but not as a result of the expiration of the second agreement. And, if emissaries pleaded on behalf of the Plaintiff, it was still in respect of the unpaid rent. I must point out that paragraph 5 of the Defendant's statement of defence contradicts his evidence on oath. In the said paragraph 5, he alleged that at the time he made a demand for payment of GH¢ 15,000.00 in the year 2009, the first tenancy had expired for two years but the Plaintiff had failed to renew same. In his testimony, the Defendant said negotiations for renewal started one year after the expiration and they agreed on a period of five years which expired in the year 2013. It can reasonably be inferred from the Defendant's evidence that the tenancy was renewed sometime in 2008 for five years. This is not in consonance with paragraph 5 of his defence that as of 2009, the Plaintiff had failed to renew her tenancy. On this point, the Defendant's evidence is not credible and I reject the same. The Plaintiff's version of the rival stories that the second tenancy agreement came into effect after the end of the first tenancy in November, 2009, is more convincing and I accept the same. It can also be reasonably inferred from the evidence on record that if the tenancy was renewed in November,2009 for a further period of five years, it could not have expired in 2013 as the Defendant has stated. Five years from November, 2009 would have been November, 2014. There is no documentary evidence for the court to rely on. This issue is a case of oath against oath. The Defendant's account of the renewal date and its duration is contradictory and therefore doubtful. I accept the Plaintiff's version as the truth and find that the second tenancy agreement was made in November, 2009 for a period of ten years, just as the other tenants of the Defendant hold ten year tenancies. Thus, the Plaintiff's tenancy will expire in November, 2019.
The Plaintiff's 4th relief as endorsed on her writ of summons is " for such order(s) as this Honourable Court may deem fit". In order to do substantial justice to both parties, I order the Plaintiff to pay the outstanding GH¢2,500 of the "Goodwill" which has remained unpaid since the year 2009 to the Defendant. There is no evidence on record as regards the monthly rent which the Plaintiff was to pay and the Defendant has not made any counterclaim for unpaid monthly rent. Just as other tenants pay monthly rent, it is my considered opinion that for the period that the Plaintiff will be in occupation of the store, she must pay the commensurate monthly rent to be agreed between the parties. For now, I will set off the GH¢ 2,500.00 being the unpaid "Goodwill" against the sum of GH¢30,000.00 awarded in the plaintiff's favour. I will not award any interest on the GH¢ 2,500.00 because if the Defendant was desirous of getting his money, he ought to have taken reasonable steps to recover the same. He has been rather indolent.
Accordingly, Judgment is entered in favour of the Plaintiff for the sum of twenty seven thousand, five hundred Ghana Cedis (GH¢ 27, 500.00). I award post judgment interest on this amount from the date of delivery of judgment till date of final payment. The Plaintiff is ordered to vacant possession of the store she occupies to the Defendant by November 30, 2019.
Having reviewed the provisions of order 74 of C.I. 47 and taking into consideration the relationship between the parties, I award cost of GH¢ 2,000.00 against the Defendant in favour of the Plaintiff.